Prostitution with knowledge of HIV/AIDS law is unjust, out of date, attorney says
Earlier this month, when we posted about Joshua Harker's arrest for prostitution with knowledge of HIV/AIDS, we referenced two previous high-profile cases involving Darren Garcia and William Head, both of whom were accused of the same offense.
Afterward, we were contacted by Julia Stancil, the attorney who represented Garcia and Head. She reveals that the prostitution with knowledge of HIV/AIDS allegations were eventually dropped against both of them -- a likely result of evidence she provided showing that neither had endangered anyone with their actions. Stancil has challenged the constitutionality of the law, and while she was unsuccessful, she argues passionately that the statute is unjust and anachronistic.
"I understand the goal of our legislature to prevent the spread of HIV and am supportive of that," says Stancil, who was a public defender when she represented Garcia and Head; she's now in private practice for Feldmann Nagel, LLC. "However, I think the laws as they stand tend to single out those with HIV and are based on outdated medical science and misinformation."
This point is seconded by Head, corresponding with Westword via e-mail. In his view, "there is no reason in this day and age that the current laws, written in the late 80s and 90s around criminal HIV, should still be on the books."
Colorado's prostitution-with-knowledge-of-HIV/AIDS statute was approved in 1999, during what Stancil describes as a period of "fear and hysteria around HIV and AIDS that was completely understandable at the time. It was seen as a death sentence. But now someone who contracts HIV as a young person has roughly the same lifespan as anyone else" owing to extraordinary treatment advances in the decade-plus since then.
To underscore this contention, Stancil points to a recent study with the not-quite-catchy title "Quantifying sexual exposure to HIV within an HIV-serodiscordant relationship: development of an algorithm." Among other things, the authors of the document, included below, quantify transmission risks for those who are HIV-positive but take daily Anti-Retroviral Therapy (ART) medications -- substances that are capable of reducing the amount of virus in the bloodstream to the degree that it's characterized as undetectable.
According to the study, an HIV-positive individual with a so-called viral load of zero has a 0.0 chance of passing along the virus when performing oral sex, as Garcia and Head were accused of agreeing to do, and a 0.0004 risk of doing so when receiving oral sex.
These conclusions have been borne out in Colorado, Stancil says. She's worked on around five of approximately 20-25 cases statewide, and she emphasizes that none of those with whom she has personal knowledge "ever put any other person at risk of contracting the virus. There's zero evidence of that. And there's certainly no evidence that anybody has contracted the virus because of these people."
When Stancil took on the assignment of defending Garcia, who had been convicted twice of prostitution with knowledge of HIV/AIDS prior to her arrest in January 2012, she assumed that statistics like these would have inspired an attorney to challenge Colorado's statute. Upon discovering this hadn't happened, she decided to do so herself due to what she sees as the law's inequities.
"The law penalizes people for knowing they are HIV positive -- not for spreading it or attempting to spread the disease," she notes. "Particularly in the case if sex workers, good public policy should encourage people to find out their status, be educated on safe sex practices, and get on medication -- not penalize them for doing so.
"There are far more dangerous STDs out there that are easily spread but not singled out in outlet criminal code, yet this law only applies to people who are HIV-positive," she stresses. "Someone can be a prostitute and give out herpes or HPV to everyone, and if they're accused of prostitution, they're charged with a misdemeanor. They could get between zero and six months in county jail, and it's generally just a couple of days. But if they're HIV-positive, even if they have a zero viral load and couldn't pass along the virus, they're treated as felons, which could mean a sentence of eighteen months in prison and effects their ability to find work and housing for the rest of their lives."
To Stancil, this disparity is even less justifiable given the advances in HIV treatment.
"Even if every single thing alleged by the police in these cases were true, which in many cases they're not, nobody would be at any type of risk receiving oral sex from a prostitute who is HIV-positive, particularly when they're being treated and they're healthy. So for them to be treated this way by the criminal justice system is shocking and based on a lot of bias and prejudice."
The records of Stancil's challenge are sealed, but she summarizes her argument and its reception like so:
"Basically, this statute separates a class of people who suffer from HIV -- and I argued that people have a fundamental right of privacy when it comes to their own medical records. In this case, the judge ruled that there wasn't a fundamental right of privacy because my client had pleaded guilty in open court to the charge twice before. But it left open the possibility that if someone else who might not have made statements in open court made the same arguments, a challenge might be looked at differently."
Meanwhile, the success of cases that deal with similar issues in other jurisdictions suggest that courts may be coming around. Stancil references a decision earlier this month in the case of Nick Rhodes, "a young man from Iowa who was healthy but HIV-positive. He had sexual intercourse with another person and later told that person he was HIV-positive -- and he was prosecuted, sentenced to 25 years in prison and labeled a sex offender for life even though he didn't spread the virus. And the Iowa Supreme Court just reversed his conviction based on the new medical science."
The Rhoades decision is also shared below.
Thanks to Stancil's advocacy, Garcia and Head avoided the most serious charges against them, too. She says Garcia pleaded guilty to what she calls "an uncharged count of possession of under one gram of a controlled substance" -- a deal without a factual basis, but one that allowed her client access to counseling and other services provided by Denver's well-regarded drug court. Head, meanwhile, admitted only to operating a massage business without a license as required by the state's Department of Regulatory Agencies (DORA).
At this point, Head is working to get his life back on track after the publicity that surrounded his arrest last year, and via e-mail he writes, "I hope the media becomes more knowledgeable around HIV and that undetectable status puts no one at risk for contracting the chronic infection. People that die from AIDS in this day and age do so out of ignorance because it is no longer deadly with the current medication regimen. People live normal lives with the medications out there.... We are pretty normal folk."
Stancil agrees, and she hopes Colorado legislators will consider eliminating the prostitution with knowledge of HIV/AIDS statute in the next session. After all, she says, "there's no health reason, in my view, for these people to be singled out and treated like they're spreading HIV to the world and they're walking around with a deadly weapon in their blood. That's taking it way too far given what we know about the virus today."
Look below to see the aforementioned HIV exposure study and the Iowa Supreme Court ruling in the Nick Rhoades case.
Send your story tips to the author, Michael Roberts.
More from our Colorado Crimes archive circa June 19: "Photos: Joshua Harker busted for prostitution with knowledge of HIV/AIDS."
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